The prosecution believed (and maintains) that he was under the influence of some other, unknown drug.
This is the reason that an impairment standard, rather than a chemical standard, makes more sense for criminal liability.
If someone's driving ability to impaired such that they are, say 70% more likely to cause an injurious or fatal accident, what does it matter whether it's because they were on Drug A or Drug B or talking on their phone?
> This is the reason that an impairment standard, rather than a chemical standard, makes more sense for criminal liability.
Impairment standards are far too subjective given the stakes. How exactly are you supposed to completely objectively measure "70% impairment"? You need a baseline, and the baseline driving ability of a person varies radically based upon time of day, emotional state, etc.
Impairment standards also lack any mechanism for differentiating between actors who know and don't know they're behaving recklessly. A cop friend of mine gave me a roadside sobriety test after a week-long period of intense work and very little sleep; I failed miserably. Now, should I have been driving? No. (And I wasn't!) But should "driving while tired" be treated the same way as "driving while piss drunk"? I'd argue not. Now, what about "got a cell phone call telling you that your parents just died, and you think you're OK, but you're not"? Jail time again?
Or, consider this case, which IMO amounts to "cut off the wrong person".
If this were a $20 ticket, I might be more sympathetic to your viewpoint. But the penalties baked into DWI laws are usually significant. We shouldn't be throwing people in jail because they were a little off-balance and jittery when pulled over on their way home from work. And especially not because they were perfectly fine but pissed off the wrong person who then lied about the results of an entirely subjective test.
These symptomatic laws shouldn't exist. Car headlights used to be mandated by watts instead of light output. The result was HID headlights that melted the retinas of oncoming drivers. Stupid laws make people stupid.
That makes sense, but is there a way to quantify that? I've always had the notion that something like a roadside sobriety test is rather subjective. I know that if I were in the situation of being suspected of a DUI (which I hope I never am), I would want a clear, quantifiable test, with a low margin of error.
You can refuse to submit to the test, get arrested, and then do breathalyzer at the station. Police also have a portable breathalyzer you could submit to roadside.
I have an eye condition that makes the gaze test, in my opinion, unreliable and the two times I've been pulled over after drinking, the police noted this prior to my doing the test. In both instances I did fine in the one-leg test and the walk-a-line test (at least I assume I did fine). To avoid inconvenience, I did decide to allow the portable breathalyzer one of those times and I think the reading came up 0.0015. I knew I wasn't seriously impaired or over the legal limit and had only had 2 or 3 beers over a 3 or 4 hour period. If you're not sure if you're over the legal limit or not, I wouldn't submit to the roadside breathalyzer (obviously though you shouldn't be driving if you're not sure or think you're impaired).
Disclaimer: I am not a lawyer. This is Internet-tough-guy advice, and you probably shouldn't follow it. It serves mainly as a thought experiment for people who generally don't get pulled over by cops.
Don't refuse the test. Refuse to submit to searches, seizures, or interrogations without the assistance of legal counsel instead. Then sit down and shut up. You will be arrested, and taken to the cop shop, but you will be more likely to prevail in court after you get your administrative punishment at the police station.
There are no objective standards for passing a field sobriety test. They exist solely to give officers plausible justification for whatever they decide to do next. If they give you one, they probably haven't yet decided whether to arrest you. In that case, if you do well enough, you will probably be free to go. If they have already decided to arrest you, you could juggle flaming chainsaws on a unicycle and still fail the test.
Once the cops even hint that they may be building a DUI case against you, stop helping them do it!
Be careful. Depending on where you live, refusing the breathalyzer or roadside test results in a mandatory 1 year license suspension regardless of what comes up in the test at the police station. Arizona here.
Interesting! Can you at least opt to go straight for the breathalyzer?
If you've not been drinking, it seems a bit of a waste of time to have to stand on one leg (etc.), when you could just use the breathalyzer and have the question answered straight away.
It's dependent on the officer. In Ohio, you can be charged with a DUI automatically if you refuse the breathalyzer. I'm not certain if this extends to the roadside test. My original comment was more that you might be able to refuse the roadside test, get arrested, and then agree to take the breathalyzer at the police station so you'd have stronger evidence.
The roadside tests are only accurate to a certain degree, whereas a properly calibrated breathalyzer provides much stronger evidence.
Also, the defendent's attorney has an excellent response to this claim in the article:
"Barrett counters that if the prosecution has evidence of a different drug in her client’s system, it should have to provided that to her, based on the rules governing criminal procedings."
Basically, "either you're charging my client for caffeine, or else you're charging my client without anything even close to resembling a reasonable evidentiary basis, or else you're not following the rules governing criminal proceedings. In each of those cases, the charges should be thrown out."
DUI requires evidence that a person is impaired by a drug. A person who is not under the influence of a drug, but is tired, emotionally distressed, distracted or otherwise unable to safely drive a car due to factors other than the use of a drug is not guilty of DUI.
There are other charges applicable to that situation, namely reckless driving, and in some states a lesser offense of careless driving. Schawb was additionally charged with reckless driving, a charge that does fit his alleged conduct.
The prosecution believed (and maintains) that he was under the influence of some other, unknown drug.
This is the reason that an impairment standard, rather than a chemical standard, makes more sense for criminal liability.
If someone's driving ability to impaired such that they are, say 70% more likely to cause an injurious or fatal accident, what does it matter whether it's because they were on Drug A or Drug B or talking on their phone?